The Nation

Senators Seek Miers' White House Files

Bipartisan requests to release the records warn that the nominee's confirmation is at stake.

WASHINGTON — Republican and Democratic senators called on President Bush on Sunday to release documents relating to Supreme Court nominee Harriet E. Miers' service as White House counsel, with some warning that she might not win confirmation otherwise.

In discussions on television talk shows, senators of both parties said the biggest obstacle to Miers' confirmation was a lack of information about her capabilities.

Sen. Sam Brownback (R-Kan.), ordinarily a Bush ally but also a social conservative who is expected to seek the GOP presidential nomination in 2008, warned that the Senate "is not a rubber stamp."

"If we're to give advice and consent, we've got to have a full picture," Brownback said in an interview on "Fox News Sunday."

Both Brownback, a member of the Judiciary Committee, and Sen. Patrick J. Leahy (D-Vt.), the committee's top Democrat, argued that since the president said he nominated Miers because of her White House experience, he should waive executive privilege and release files on at least some of her work.

"The president has based that decision on what he's seen her do in the White House," Leahy said on the same Fox News program. "We ought to at least know what it was she did in the White House."

Brownback added: "I do think we're going to have to see more information. Not attorney-client privilege-type information, but more information of the work product that she was involved in, in the White House, that's not of a legal nature, but that's of a policy nature."

Presidents have a right under a legal principle known as executive privilege to keep secret the inner workings of their staff, including most of the documents they produce.

In most circumstances, Bush has been firm in resisting calls to provide information about White House deliberations, and White House spokesman Scott McClellan has said he is not intending to change the policy at this time.

However, Miers' nomination has encountered resistance from Republicans and Democrats, who in recent days have increased pressure on the White House to provide more information on her.

Sen. Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee, said that Miers' nomination could fail if senators didn't learn more about her in the coming weeks.

"I think if you were to hold the vote today, she would not get a majority, either in the Judiciary Committee or on the floor [of the Senate]," Schumer said on NBC's "Meet the Press." But, he added, that could change if she did well in committee hearings scheduled to begin Nov. 7.

"The hearings are going to be make or break for Harriet Miers in a way that they have not been for any other nominee," Schumer said. "She's going to have to do real well there. Right now, she has a rough road to hoe."

Judiciary Committee Chairman Arlen Specter (R-Pa.) said that at the moment, the vote on Miers could go either way.

"It's going to depend upon how well she does [in the hearings]," Specter said on CBS' "Face the Nation." "She's going to have 18 senators well-prepared, and it's sort of like a relay interrogation. But if she makes her case, she can be confirmed."

Democratic National Committee Chairman Howard Dean said, "My guess is that if we don't get these documents, she can't get confirmed.

"The American people should know what this woman really believes," Dean said on ABC's "This Week." "And the only way to find that out, given [the] paucity of her legislative record, is to have the president waive executive privilege and show us what she wrote for him while she was advising him."

During the confirmation process for Chief Justice John G. Roberts Jr., the White House refused to turn over materials from his service in the first Bush administration, but avoided a showdown with the Senate over executive privilege.